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A Better Partnership
September 25, 2017

Is a wife who did not physically live with her husband a surviving spouse? The MSC will decide.

In In re Estate of Erwin, No. 153980 and No. 153981, the Michigan Supreme Court has granted leave to appeal the questions of (1) whether the “willfully absent” provision in the Estates and Protected Individuals Code ("EPIC") is defined exclusively by physical separation, or whether it includes consideration of the emotional bonds and connections between spouses; and (2) whether EPIC requires proof that a spouse intends to abandon his or her marital rights. 

​James Erwin, Sr. died intestate on October 12, 2012. He was survived by his spouse, Maggie Erwin, and 10 children: six children from his first marriage and four children from his second marriage to Maggie. These consolidated appeals arose out of a heated dispute over the assets remaining in his estate.  Although Maggie and James had been married since 1968, Maggie and James did not live together after 1976.  However, Maggie and James remained in close contact, and even filed a joint lawsuit in 2010 in which they stated that “the life of Maggie Erwin . . . would be irreplaceable for her husband . . . .”  The trial court therefore determined that Maggie was not "wilfully absent," and was entitled to a surviving spouse share of James's estate.  

The Court of Appeals affirmed the trial court's decision to grant Maggie a surviving spouse's share of the estate.  Under EPIC, a surviving spouse does not include an individual who "[w]as wilfully absent from the decedent spouse."  The Court of Appeals held that the "willfully absent" provision under EPIC is a factual question that concerns more than mere physical separation, including whether the spouse intended to abandon the decedent spouse.  The Michigan Supreme Court has granted leave to consider this question of statutory interpretation. 

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